Civil Procedure Flashcards
When does federal question jurisdiction exist?
When plaintiff’s claim is based on federal law. Must be in the well-leaded complaint. (Mottley)
Two exceptions to diversity jurisdiction.
(1) probate cases
(2) domestic relations cases
What is a corporation’s citizenship?
Two citizenships:
1) state where incorporated
(2) state where corp has principle place of business (headquarters
What is a individual’s citizenship?
Domicile (resident + intention to remain indefinitely)
What is the amount in controversy for diversity jurisdiction?
$75,000. Must only plead amount in good faith.
Supplemental jurisdiction
Allows federal court with subject matter jurisdiction over one claim to hear additional claims if all claims share a “common nucleus of operative fact.” 18 USC § 1367.
When does a federal court citing in diversity have supplemental jurisdiction over counter- and cross-claims?
Compulsory counterclaim = Always has supplemental jurisdiction over compulsory counterclaims (one that arises out of same transaction/occurrence).
Permissive counterclaim = Only has jurisdiction over permissive counterclaim if it independently meets the diversity requirements.
Cross claims = can hear if it arises out of the same transactional occurrence.
Exceptions to supplemental jurisdiction
(1) claims by π against impleaded third-party ∆s
(2) claims by π against additional ∆s joined as necessity
(3) claims by interveners
(4) claims by π joined involuntarily
Removal to federal court
Can remove if case could have been brought originally in federal court. Only ∆s remove.
One year limit on removal.
Two personal jurisdiction questions
(1) Is personal jurisdiction authorized by statute or court rule (look for long-arm statute)?
(2) Is this personal jurisdiction permitted by federal Constitution?
Constitutional requirements for personal jurisdiction
Due process requires “minimum contacts” between ∆ and the forum state, comporting with “fair play” and “substantial justice.”
Look for: Personal availment of the state or its laws by ∆.
Can personal jurisdiction be waived?
Yes. Unlike subject matter, ∆ can waive.
When must ∆ challenge personal jurisdiction?
At the first opportunity (i.e., motion to dismiss or in ∆’s answer)
Federal exceptions to personal jurisdiction (two statutes)
Federal Interpleader Act = authorizes nationwide service of process
Bulge Provision of federal rules = allows service on impleaded third-party ∆ OR a necessary party if ∆ is within 100 miles of the federal courthouse.
How do federal courts determine personal jurisdiction?
Follow the personal jurisdiction law of the state where they sit. Generally, the following is enough:
Individual = (1) physically present in the state (2) domiciled in state OR (3) consent
Corporation = (1) incorporated in state, (2) principle place of business in state, OR (3) if foreign corp, doing business in the state (requires more than one transaction).
In rem and quasi-in rem jurisdiction
Applies if property (real or intangible) is within the state.
Quasi-in rem = Tries to use in-state property as a basis for forcing an out-of-state defendant to litigate an unrelated claim. Still requires minimum contacts (rarely used).
Notice and Service of Process requirements
Service must be delivered. Three ways to deliver: (1) leave summons at ∆’s dwelling, (2) delivery to ∆’s authorized agent, or (3) delivery by registered mail.
Venue
Proper venue if:
(1) if all ∆ are in-state, where any ∆ resides.
(2) where the claim arose — “a substantial part of the events or omissions” on which claim is based or “substantial part of the property” subject to the action
(3) if neither of above, in any district where any ∆ can be served.
Which law applies after venue transfer?
If original court was proper venue = original forum law controls
If original court was improper venue = new forum law controls
Erie doctrine
In diversity cases, federal courts apply federal procedural rules but state substantive law. This includes (1) substantive rules, (2) statutes of limitation, (3) rules of proof, and (4) state rules on choice of law.
Notice pleading standard
Pleadings only need give fair notice by a short and plain statement of the claim. But allegations must create a “plausible” case for recovery. (Twombly & Iqbal)
Exceptions: (1) fraud, (2) mistake, or (3) special damages. These require pleading with particularly.
Grounds for motion to dismiss
(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) failure to state a claim upon which relief can be granted
(5) failure to join a necessary party
(6) forum non conveniens
Standard for amending pleadings
As of right = Pleadings can be amended within 21 days after serving pleading.
By leave of court = after 21 days, must ask court for permission. Permission should be “freely granted.”
Amendments are deemed to relate back to date of original pleading. (Prevents SoL problems)
Motion for a more definite statement
Asks that the pleadings be made more specific
Motion to strike
Used to delete from pleadings matters that are scandalous or prejudicial and NOT RELEVANT to the case at hand.
Amendment to change or add ∆
Two requirements:
(1) Must concern the same transaction as original pleading AND
(2) ∆ must have known or had reason to know that the action should have been brought against it.
Permissive joinder of parties
Any number of πs may join if (1) they assert claims arising out of the same fact or occurrence and (2) there are common questions of fact and law.
No party can be joined if it would destroy complete diversity. (but only one party’s claims need to exceed $75,000)
Compulsory joinder of parties (by ∆s)
Party’s presence is “necessary for a just adjudication.” (Still requires subject matter and personal jurisdiction.)
Intervention
Intervention as of right = when outsider claims an interest in lawsuit that will be compromised by disposition of the pending action.
Permissive intervention = allowed if there is a common question of law or fact between the main claim and intervener’s claim.
Interpleader
Party possessing property is a “stakeholder” who can interplead the “claimants” and resolve all claims in a single action. Can be used offensively by the stakeholder or defensively by the claimant.
Joinder of claims
All claims between the same parties can be joined. No limitation. Can aggregate amounts to reach $75,000 requirement.
Compulsory counterclaims
Arise out of the same transaction or occurrence. Must be brought or will be lost forever.
Permissive counterclaims
Do not arise out of the same transaction or occurrence. Independent jurisdiction is required. (i.e., must be federal question OR diversity + $75K)
Cross-claim
Cross claims against co-parties (e.g., π against π). Must arise out of same transaction of occurrence. Never compulsory.
Interpleader / Third-party practice
∆ may implead someone who is or may be liable to the ∆ for all or part of the π’s claim against him.
Class Action requirements
(1) Numerousness of parties
(2) Common questions of law or fact
(3) Typicality of claims of class representative
(4) Adequacy of representation by representative’s lawyer.
Any dismissal or compromise in class action requires judicial approval.
Class Action Fairness Act = if 100+ πs with $5M or more at stake, only need minimal diversity.
Scope of disovery
Anything relevant. Anything that is admissible at trial or may lead to something that is admissible.
Work product rule
Attorney work product protects: (1) Documents or things (not information) (2) prepared in anticipation of litigation (3) by or for another party or her representative.
Qualified privilege: Other party may still get work product if can show (1) necessity and (2) it cannot be obtained elsewhere.
Witnesses can always get a copy of their own statement. But cannot discover attorney’s mental impressions.
Oral depositions
Questions asked under oath.
Limited to 10 depositions of one day’s duration unless court orders more. If witness, must deliver to them a subpoena.
Interrogatories
Questions asked and answered in writing.
Only used against a party to litigation, and limited to 25 unless court allows more.
Physical and mental examination
Can only be required of a party (not a witness). And only when (1) party’s physical or mental condition has been put in controversy and (2) good cause is shown.
Request for admissions
Used for streamlining trial, not discovering new information. Failure to respond is an admission.
Admissions have no preclusive effect; cannot be used in future proceedings.
Five ways to terminate proceedings without trial
(1) Judgment on the pleadings
(2) Default judgement
(3) Voluntary dismissal (without prejudice)
(4) Involuntary dismissal (with prejudice)
(5) Summary judgment
Voluntary dismissal
π has a right to voluntary dismissal once at any time prior to ∆’s serving an answer or motion for summary judgment.
∆ can file for dismissal at earliest opportunity.
Involuntary dismissal
Without prejudice if = imposed for (1) lack of jurisdiction, (2) improper venue, or failure to join an indispensable party.
If with prejudice = counts as adjudication on the merits and has full res judicata effect.
Summary judgment standard
There is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Must be supported by particular parts of materials in the record.
(Unlike motion to dismiss, this takes evidence, or lack thereof, into account.)
Trial by jury
Required by 7th Amendment for law but not equity (as understood in 1791).
When legal an equitable issues overlap, try legal issues first.
Demand for trial by jury must be made no later than 14 days after service of answer or other pleading addressing the issue.
Preemptory challenges
Each side has 3 preemptory challenges to strike jurors for any reason (except race or gender)
Motion for judgment as matter of law (J.N.O.V.)
Same as summary judgment but made after close of π’s case or at end of all evidence
Can renew motion for judgment as matter of law after the verdict if you made the motion pre-verdict.
New trial motion grounds
(1) error made the judgment unfair
(2) newly discovered evidence that could not have been found at time of trial
(3) prejudicial misconduct by lawyer, party, or juror
(4) excessive verdict AND winning party refused remittitur.
Timing of appeal
Must be made 30 days after entry of final judgment. Time is tolled by motion for J.N.O.V. or new trial.
Interlocutory orders
Immediately appealable. Available for (1) injunctions and (2) orders affecting property.
May also be had on leave of court if BOTH trial and appellate court certifies the question as involving (1) controlling questions of law that (2) materially advance termination of the litigation.
Claim preclusion (res judiciata)
Three elements:
(1) final judgments on the merits in the first suit
(2) second suit involves the same parties or their “successors in interest”
(3) second suit involves the same claim / cause of action
Issue preclusion (collateral estoppel)
Three elements:
(1) same issue of fact arises in two suits
(2) issue must have been “actually and necessarily decided” in first suit (e.g., not a default judgment)
(3) party to be precluded must have been a party to the first suit.
When may a court exercise specific jurisdiction over a non-resident defendant?
(1) the non-resident has sufficient minimum contacts with the forum state,
(2) the claim asserted against the ∆arises out of those contacts, AND
(3) exercise of jurisdiction is reasonable
When suing a trust, whose domicile is counted for jurisdiction purposes?
The trustee’s.
What is the “bursting bubble” approach to presumptions in a civil case?
Presumption is not evidence. Presumption will only operate until other party presents evidence. Then, it is rebutted.
